Gun Offenses

Being charged with a firearm-related offense in Wisconsin raises many concerns and questions:

Can I lose my right to possess a gun?

Does the government have authority to take my gun just because I’m charged with a crime?

Will I go to jail if convicted?

Gun related charges are prosecuted aggressively in Wisconsin, and particularly in Milwaukee County. In order to make sure that your rights are protected, it is critical that you hire a law office with an expertise in firearms and gun-related laws. The attorneys and staff at Mastantuono & Coffee have that expertise, as well as a significant history at handling important firearm cases.

Wisconsin Gun Law Defense Attorney

“Mastantuono and Coffee has not lost a single case on which our organization assisted by providing legal defense funds for their services.”

For many of our clients, the Constitutional right to keep and bear arms is sacred. Potential loss of this right is a critical concern. The attorneys at Mastantuono & Coffee understand this, know the law, and have a track record that includes both winning acquittals for our clients at trial and negotiating favorable outcomes with the prosecutor. Our attorneys have successfully challenged the Constitutionality of Wisconsin gun laws, and have won acquittals for many clients facing gun charges at jury trials. Additionally, we have presented at and attended trainings and seminars on gun laws and gun policy.

Firearms Law Defense

Cases

Following is a list of some of the firearms-related cases we have handled:

Dismissal of Carry Concealed Weapon (“CCW”) charge following acquittal at jury trial. Mastantuono & Coffee client charged for transporting an unloaded handgun on the rear car seat. Jury delivered an acquittal following two days of a contested jury trial, at which defense counsel argued that there was nothing illegal about client's actions with the handgun, and that the client was acting within Second Amendment and constitutional privilege to bear arms. Milwaukee County, 2015.

Dismissal of Carry Concealed Weapon (“CCW”) charge following acquittal at jury trial. Mastantuono & Coffee client charged with CCW while in her vehicle. Client carrying handgun in holster on her hip, openly. Police Officer said that client’s gun was covered by her clothing. Following two-day jury trial, client acquitted of all charges. Milwaukee County, 2013.

No criminal charge filed following investigation. Client referred to Waukesha County District Attorney for road-rage incident for pulling out his firearm in self-defense when another driver advanced toward his vehicle in a threatening way. After investigation and negotiation District Attorney declined to issue charges against our client, who had no prior record and was a lawful CCW permit holder. Waukesha County, 2013.

Client retains CCW permit. Client charged with possession of a firearm while intoxicated from an investigation for being in a park after hours, resulting in seizure of his firearm and a small amount of THC. Following plea agreement with the Ozaukee County District Attorney, firearm charge was dropped, allowing client to move forward and retain his CCW permit. Ozaukee County, 2013.

Client convicted of disorderly conduct, with domestic abuse enhancer, retained right to lawfully possess firearm. Client convicted of disorderly conduct with domestic violence enhancer following verbal argument with wife. Conviction resulted in automatic lifetime prohibition against possession of firearms for any purpose. Mastantuono & Coffee successfully argued that the domestic violence enhancer should be dismissed, allowing client, an avid outdoorsman, to retain his right to lawfully possess a firearm. Brown County, 2013.

Client subject to civil injunction with automatic firearm prohibition retained right to lawfully possess a firearm. Client subject to harassment injunction, which carries an automatic prohibition on possession of firearms for any purpose, caught with handgun in his home, which he kept for protection. Prosecuted for violating the terms of harassment injunction. Mastantuono & Coffee successfully challenged application of the automatic firearm prohibition to our client, resulting in dismissal of all charges. Milwaukee County, 2011.

Homicide charge against client who acted in self-defense dismissed before trial. Client charged with homicide after using his firearm to shoot intruder who broke into his home. Mastantuono & Coffee prepared the case for jury trial and moved for dismissal after Sheriff's Department lost crucial evidence. Case dismissed prior to trial, affirmed by Court of Appeals. Burnett County, 2009.

Dismissal of Carrying Concealed Weapon charge on Constitutional grounds. Client, a pizza deliveryman, charged with unlawful CCW after shooting an armed man who was trying to rob him. Mastantuono & Coffee successfully argued that under the circumstances, prosecution for breaking the CCW law violated our client’s right to keep and bear arms for the purpose of security and defense under the Wisconsin State Constitution. All charges dismissed. This case occurred before the USSC Heller decision, and was picked up by AP/national media. It was also the subject of an interview with Attorney Mastantuono on Sirius XM Patriot channel/NRA news. Subsequent to case being dismissed, Mastantuono & Coffee filed a Petition for Return of Property for client’s gun, still held by the city. The initial petition was denied; we successfully appealed, and client’s gun was returned to him. Milwaukee County, 2007.

Professional Lectures

Gun Law & The Second Amendment: A View from the Street; National Rifle Association – Institute for Legislative Action Firearms Symposium, San Diego, CA, 2011. Craig Mastantuono was a member regarding police/citizen encounters and investigative stops in situations where a firearm may be present.

Transportation, Wis. Stat. § 167.31(2)(b). No longer required to have firearms encased for lawful transport. The general statutory requirement is that the firearm is unloaded, or is a handgun. If the person transporting the firearm has a license to carry concealed, then the firearm can be located anywhere in the vehicle. However, if the person transporting the firearm does not have a license to carry concealed, then the firearm cannot be concealed and within reach. Concealed can include anywhere that the firearm is hidden from ordinary observation. Criminal charges have been filed against individuals who transport their firearm while lying on the seat next to them, and had just part of the gun visible. Those who transport firearms without a license should exercise caution that the firearm is not within reach of anyone while it is transported.

Carry Concealed License Eligibility, Wis. Stat. § 175.60(3).To be eligible for a carry concealed weapon (CCW) license, an individual must be a Wisconsin resident over the age of 21, complete an approved firearms training program, and not be prohibited from possession a firearm under state or federal law.

People prohibited from possessing firearms include, but are not limited to the following: felony conviction, an active bail condition, a juvenile adjudication for a felony offense, not guilty of an offense by reason of mental disease or defense (NGI), subject to a Chapter 51 treatment commitment, subject to an injunction/restraining order for domestic violence or child abuse, or a misdemeanor domestic violence conviction.

If You Carry, Know Where and When You Can't Go. By statute, you cannot carry firearms in certain locations. Violation of these restrictions can subject you to a monetary penalty or even a criminal charge. Here are some examples of where and when an individual cannot carry a firearm: courthouses, jails, mental health facilities, while under the influence of an intoxicant or with a detectible amount of a restricted controlled substance, where signs are posted, on school grounds, or within 1,000 feet of school grounds if you are not a CCW license holder.

Self Defense, Wis. Stat. § 939.48. Generally, self-defense absolves the actor of any criminal liability. However, there can still be criminal responsibility if the actor exercised self-defense unreasonably. If it was unreasonable for the actor to have believed that he faced imminent danger, that it was necessary to use or threaten the use of force to prevent or terminate that danger, or that the force the actor used was necessary to defend against that danger.

Standard self-defense is not restricted to any location to have the privilege available. The statute reads

A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself. - Wis. Stat. § 939.48(1).

It requires that the actor point to some evidence that he or she reasonably believed the following: (1) that there was an actual and imminent unlawful interference with the actor's person; and (2) that it was necessary to use force or threaten to use force to prevent or terminate the interference; and (3) when deadly force is used, that it was necessary to prevent imminent death or great bodily harm to himself or herself.

While there is no duty to retreat, it is relevant when considering if it was reasonable for the actor to believe that the force used was necessary to prevent or terminate an interference. The considerations include whether: the actor had the opportunity to retreat, such retreat was feasible, and the actor knew of the opportunity to retreat.

Castle Doctrine, or Self-Defense in Home, Vehicle, or Business.The privilege of self-defense in your dwelling, vehicle, or place of business carries very specific additional protections to standard self-defense. The statute reads:

If an actor intentionally used force that was intended or likely to cause death or great bodily harm, the court may not consider whether the actor had an opportunity to flee or retreat before he or she used force and shall presume that the actor reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself if the actor makes such a claim under sub. (1) and either of the following applies: 1. The person against whom the force was used was in the process of unlawfully and forcibly entering the actor's dwelling, motor vehicle, or place of business, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that an unlawful and forcible entry was occurring. [or] 2. The person against whom the force was used was in the actor's dwelling, motor vehicle, or place of business after unlawfully and forcibly entering it, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that the person had unlawfully and forcibly entered the dwelling, motor vehicle, or place of business. - Wis. Stat. § 939.48(1m)(ar).

There are also exceptions to this privilege. If the actor was using the home/vehicle/business for any criminal activity or if the person entering the location was a public safety worker, the actor is not entitled to the privilege of self-defense.

Self-Defense Terms Defined"Dwelling" means any premises or
portion of a premises that is used as a home or a place of residence and that
part of the lot or site on which the dwelling is situated that is devoted to
residential use. "Dwelling"
includes other existing structures on the immediate residential premises such
as driveways, sidewalks, swimming pools, terraces, patios, fences, porches,
garages, and basement.

"Place of Business" means a
business that the actor owns or operates.

"Great bodily harm"
means bodily injury which creates a substantial risk of death, or
which causes serious permanent disfigurement, or which causes a permanent or
protracted loss or impairment of the function of any bodily member or
organ or other serious bodily injury.

"Reasonable Belief" means what a person of ordinary intelligence and prudence would have
believed in the actor's position under the circumstances that existed at
the time of the alleged offense. The
reasonableness of the actor's beliefs must be determined from the
standpoint of the actor at the time of the defendant's acts. A belief may be reasonable even though mistaken. Wisconsin Criminal Jury Instruction 805; see also Wis. Stat. § 939.22(32).

Forfeiting the Privilege of Self-DefenseIn addition to the exceptions that are specific to the Castle Doctrine referenced above, either type of self-defense is forfeited by provocation. Provocation is "unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack". Wis. Stat. § 939.48(2). Although there are circumstances under which a person can regain the privilege of self-defense, they are very fact specific.

A Pre-Castle Doctrine Amendment case:

The incident (1/20/08) and filing of charge (5/13/08) predated passage of the Wisconsin Castle Doctrine law. The State (Burnett County) charged the defendant with 2nd Degree Intentional Homicide (unreasonable self-defense) related to a shooting death at his home in 2008. The defendant shot and killed a man who had forcibly broken into his home, in an apparent attack on the defendant after a cell phone/text message argument. Despite undisputedly acting in self-defense, the Burnett County District Attorney charged the defendant with an intentional criminal homicide, under the theory that he acted unreasonably in defending himself. The DA alleged that the defendant acted in imperfect, or unreasonable, self-defense. The DA asserted that although the defendant may have actually believed he was in imminent danger of death or great bodily harm, and actually believed that he needed to use deadly force to defend himself, his beliefs were unreasonable under the circumstances.

The defendant and the decedent had only met once prior to the date of incident. The incident happened on January 20th, 2008. That day, the defendant was at his home with his girlfriend (who was 5 months pregnant with the defendant’s child at the time), and her 5-year old son. The decedent was the girlfriend’s ex-boyfriend; he was the father of her son. Due to a dispute involving the girlfriend, the decedent had called the defendant’s cell phone throughout the day; the defendant ignored the calls. In one of the calls, he left a voicemail message threatening the defendant that he was going to send him to the hospital. He also sent text messages to both the defendant and his girlfriend’s phones threatening to come over and kick the defendant’s ass, and to kick the defendant’s door in. In the last text message, the decedent told the defendant that he was going to come over and put him in the hospital after the Packer game ended. The defendant responded to a couple of these messages with sarcastic, unthreatening comments.

After the game, at approximately 10:00 p.m., the defendant heard his dog barking. He went upstairs and saw truck headlights pulling up to his house. He turned off all the lights and told his girlfriend to go into the bedroom with her son and call 911. As he was standing in his kitchen, the defendant could see one of the decedent’s friends pounding on his front window and he could hear the decedent yelling and pounding on his front door. The defendant went down into his basement, retrieved his .38 caliber pistol, loaded it, and went back upstairs. The door to his home flew open; the decedent broke in. The defendant told him to stop. The decedent started coming toward him, and the defendant fired 2 shots, hitting the decedent in the chest. The decedent stumbled back out the door. The defendant went outside and checked his pulse, and found that he had none. He waited for police to arrive and immediately told them “I shot him, he broke into my house and I thought he was going to kill me.”

According to the criminal complaint, the D.A. based his theory in part on the on the allegation that the defendant did not provide warning to his intruder that he was armed, and that he did not shoot to injure rather than kill his intruder. The availability of the castle doctrine exception to the general duty to retreat would have applied perfectly in response to those allegations. The defendant was faced in his home by a man who had forcibly broken in, while shouting threats at him, and came after him after he had broken in. Unfortunately, the castle doctrine exception was not available to the defendant, and he was charged.

The defense’s position was that the defendant’s belief that he needed to use deadly force to protect himself, his girlfriend, their unborn child, and her 5-year old son, was clearly reasonable. The defense argument was that he acted in perfect self defense under Wisconsin law and was not guilty of any crime. The defense filed a motion to dismiss the criminal complaint for failure to properly allege a crime. That motion was denied by then-Circuit Court Judge Gabelman. His successor judge in the case, Judge Babbitt, ultimately dismissed the case prior to trial on other grounds. The Count of Appeals upheld that decision.

A Post-Castle Doctrine Amendment Case:

The incident (3/3/12) postdated passage of the WI Castle Doctrine law. A Slinger homeowner was confronted by a person unknown to him, on his enclosed porch in the middle of the night, while his wife and two children were in bed. The homeowner shot and killed this person, who turned out to be an unarmed young man who ran into the home from a drinking party next door. The matter was referred to the Washington County District Attorney, who ultimately declined to prosecute the matter.

The homeowner was aware of a drinking party occurring on the property neighboring his home late at night, and he had already called the police about the situation. He had been met with hostility by people next door in a car when he went out to tell them it was 1 o’clock a.m. He went back inside and went to bed. Just prior to the confrontation, he heard loud bangs coming from the rear of his home. He got up to check whether his doors were locked, and retrieved his firearm from a hallway closet before going to the rear-enclosed porch, where he was confronted with the presence of the decedent.

The back porch-room was enclosed fully, clearly meeting the definition of “dwelling” in the WI Castle Doctrine amendment. It was more than a mere porch, containing a refrigerator, a freezer, a dresser containing clothing and a hanging clothing rack. The outer doorway entry consisted of two doors to gain access into the room. An intruder’s presence in this room was arguably more startling and dramatic than mere presence on an outside porch, patio, or other curtilage.

The homeowner was confronted by someone already inside his home, and unknown to him. The person was in the porch-room, having already entered through the two outer doors, and the homeowner had already almost walked past him when going to check the locks of the outer doors. The person was off to his right side, almost behind him, an arm’s length away. The homeowner yelled statements including “why are you in my home” and “don’t move, don’t move” when the intruder raised his left arm and stepped toward him. He stepped back against his freezer and then fired one shot. He then put his pistol on the freezer and told his wife to call 911. Police arrived and discovered the decedent, already expired, on the porch. The homeowner gave a statement and provided a blood sample; he had no intoxicant in his system.

Both the District Attorney and the defense concluded that the Wisconsin self defense law predating passage of the WI Castle Doctrine amendment supported the conclusion that the homeowner acted reasonable under the circumstances, and no formal charge was initiated against the homeowner. Below is a portion of the DA’s written charging decision:

First, the Washington County District Attorney’s Office concludes that under the law of self defense which exists in Wisconsin (independent of the Castle Doctrine) that there is a basis to conclude that the homeowner reasonably believed that the force he utilized against [the decedent] was necessary to prevent imminent death or great bodily harm to himself; and he therefore acted lawfully in self defense when he shot [the decedent].

Second, our office concludes that no reasonable jury could convict the homeowner of any crime for his actions on March 3, 2012. A prosecutor has an ethical obligation to only charge an individual with a crime that he or she believes could be proven by admissible evidence beyond a reasonable doubt at trial. Since no reasonable jury could convict the homeowner of any crime for his actions on March 3, 2012, it would not be ethical for our office to file any charges against the homeowner.

Third, our office concludes that the Castle Doctrine would apply in this case. Therefore, if the homeowner had been charged in this case and a trial ensured, the homeowner would have been entitled to the presumption of the Castle Doctrine – specifically the presumption that he “reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself” when he shot [the decedent]. In this case, our office concludes that this presumption – that the homeowner exercised “reasonable force” – is a valid presumption under the facts of this case. Therefore, in this case, the homeowner acted lawfully [sic] self defense when he shot [the decedent].

Fourth, our office concludes that there are no facts in this case which would overcome the presumption that the homeowner acted reasonably when he shot [the decedent].

Fifth, a prosecutor has an ethical obligation to only charge an individual with a crime that he or she believes could be proven by admissible evidence beyond a reasonable doubt at trial. Since there are no facts in this case which would overcome the presumption that the homeowner acted reasonably when he shot [the decedent], no reasonable jury could convict the homeowner of any crime for his actions on March 3, 2012. Therefore, it would not be ethical for our office to file any charges against the homeowner.

One of the issues requiring analysis during the investigation and charging process in the Slinger case was whether the intruder had forcibly entered the home, within the meaning of that term as used in the WI Castle Doctrine amendment. Ultimately, both sides agreed that the force required for unobstructed entry to a home, and no more, was sufficient to meet the requirement of forcible entry by an intruder contemplated by the new law. Below is an excerpt from the defense’s analysis of that issue:

Forcible Entry

Wis. Stat. § 939.48(1m)(ar), references an intruder’s “unlawful and forcible entry” as the event giving rise to that statute’s presumptive reasonableness concerning the actions of a person who uses force when confronted with that intrusion. “Forcible” is not defined further in that statute.

The jury instruction on Robbery by Use or Threat of Force, JI # 1479, (Wis. Stat. § 943.32(1)(a) and (b)) defines forcibly as follows: “Forcibly means that the defendant [actually used force against _(name)_ with the intent to overcome or prevent his physical resistance or physical power of resistance to the taking or carrying away of the property] [or] [threatened the imminent use of force against __(name)_ with the intent to compel _(name)__ to submit to the taking or carrying away of the property. ‘Imminent’ means ‘near at hand’ or ‘on the point of happening’”.

Two cases cited in annotations to Wis. Stat. § 943.32(1), Robbery, are helpful in determining the definition of forcibly:

Walton v. State (1974) 218 N.W. 2d 309, 64 Wis. 2d 3: (The force which will support a robbery conviction is not to be confounded with violence). (In Walton, the defendant’s robbery conviction was upheld where the defendant snatched the victim’s purse from her person without ever touching the victim. The Court held that “under any reasonable view of the evidence, force was used against the victim with intent to overcome physical resistance.” Id. at 44. In other words, no showing of actual force is required to prove robbery by use of force.)

Additionally, the jury instruction for False Imprisonment, JI 1275, is also relevant to what constitutes “forcibly” in the criminal code. That instruction requires that the State prove that the victim was confined or restrained. The meaning of confined or restrained is explained as follows: “Although this requires genuine restraint or confinement, it does not require that it be in a jail or prison. If the defendant deprived (victim) of freedom of movement, or compelled her to remain where she did not wish to remain, then (victim) was confined or restrained. The use of physical force is not required. One may be confined or restrained by acts or words or both." JI 1275, emphasis added.

Although “forcibly” is not contained in the definition of false imprisonment, the broad definition and lack of any requirement that physical force be used to confine or restrain a person is relevant to the present charging decision.

2) Common Definition of “Forcibly”

The American Heritage Dictionary defines “forcibly” as “effected against resistance through the use of force.”

The same dictionary defines “force” as “the capacity to do work or cause physical change; energy, strength, or active power”, also referencing subsequent definitions including “power made operative against resistance; exertion”.

Obviously, the common English definition of “forcibly” is quite broad, referencing the noun “force”. The definition of “force” is also quite broad, including the capacity to do work or cause physical change, like the work or capacity utilized to open a door. It makes sense that the range of actions that can fit into the category of force is so broad, logically spanning from the simple force required to move an object to exertions of great strength or power. In the present matter, the decedent obviously exerted the amount of force necessary to open the two doors – an outer storm door and an inner wooden door – leading into the rear porch-room of the home.

3) Language from Wis. Stat. § 939.48(1m)(ar) – Castle Doctrine

(ar) If an actor intentionally used force that was intended or likely to cause death or great bodily harm, the court may not consider whether the actor had an opportunity to flee or retreat before he or she used force and shall presume that the actor reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself if the actor makes such a claim under sub. (1) and either of the following applies:

1. The person against whom the force was used was in the process of unlawfully and forcibly entering the actor's dwelling, motor vehicle, or place of business, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that an unlawful and forcible entry was occurring.

2. The person against whom the force was used was in the actor's dwelling, motor vehicle, or place of business after unlawfully and forcibly entering it, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that the person had unlawfully and forcibly entered the dwelling, motor vehicle, or place of business.

Inclusion of the “forcibly” language in the Castle Doctrine law should not cause one to interpret the statute and define that word any less broadly than referenced above: as including the broad range of force required to either open a door or window, to move an object, or to break and enter. To do so would be an illogical endeavor, because different people, police, and prosecutors would inevitably draw the line defining “force” in different ways, leading to unconstitutionally vague applications of the law. For example, if we read into the statute a definition of “forcibly” that requires an overpowering of someone or something, how would we then consistently define that term? As requiring a break-in? Or the shoving open of a jammed door? A broken window? A picked or jammed lock? Lifting of a large manual garage entrance door? Or a heavy window? Entry by threat of force? Or intimidation? Or Stealth?

Additionally, it is illogical that the Legislature intended to afford a home dweller the presumption that (s)he acted reasonably in using force when presented with an unlawful intruder who forcibly shoved open a door and entered the dwelling, but not against one who climbed through an unlocked window, or door. The law would not logically require the person in the home, faced with an unlawful entry, to determine at that moment the amount of force the intruder used to unlawfully enter the dwelling before deciding whether to use force to defend self and home.

The law obviously affords people confronted with unlawful entry into their homes the presumption of reasonable use of force in response, without distinction as to method or mode of entry. This was the exact situation that clearly confronted our client in the present matter.

The change in the law does appear to be as much a deterrent for charging as it is a litigation defense. It is uncertain, given the mandatory presumption of reasonableness in the defendant’s favor if the predicate facts are met, how often trial litigation will ensue under the Castle Doctrine amendment to WI self defense law.

Mastantuono & Coffee SC
- Waukesha Location

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